An
Approach to Researching the Drafting History of International Agreements*

By Jonathan Pratter

Jonathan
Pratter has been the Foreign and International Law Librarian at
Tarlton Law Library, Jamail Center for Legal Research of the University of Texas at Austin since 1985. He holds a law degree from the University of Nebraska and a Masters in Library and Information Science from the University of Illinois. When not working, teaching, or writing as a law librarian, he can be found studying
a new foreign language or taking a long walk.

A. What Are
Travaux Préparatoires and Why Look for Them?

There are at least
two good reasons why one would go in search of the travaux préparatoires
to an international agreement (and/or ask for the assistance of a law librarian
in doing so). Before we go into those reasons, what exactly are travaux
préparatoires?

The phrase is of
course French and translates literally as “preparatory works.” Synonymous
phrases in English are “negotiating history” or “drafting history.” It is
better to avoid using the phrase “legislative history” as a synonym. While
they bear similarities, treaty interpretation differs significantly from
statutory construction (especially as the latter is done in the U.S.). As well, there is another use for the phrase “legislative history” – as a synonym for
the ratification history of an international agreement as that takes place in
domestic law.

Two definitions
from leading texts are:

An omnibus
expression which is used rather loosely to indicate all the documents, such as
memoranda, minutes of conferences, and drafts of the treaty under negotiation,
for the purpose of interpreting the treaty.[1]

[T]he record of the negotiations preceding the
conclusion of a treaty, the minutes of the plenary meetings and of committees
of the Conference which adopted a treaty, and so on ….[2]

Two
further requirements, unstated but implied in these definitions, are made
explicit in the award in the Young Loan Arbitration:[3]

It must first be stressed that the term [travaux
préparatoires] must normally be restricted to material set down in writing –
and thereby actually available at a later date. … A further prerequisite if
material is to be considered as a component of travaux préparatoires is that it
was actually accessible and known to all the original parties.[4]

The
first reason for seeking out travaux préparatoires can be called the
interpretive reason. There is doubt or disagreement about the meaning of an
international agreement. Those charged with interpreting the agreement -- it
could be a court, or an arbitral tribunal, or anybody who is interested in the
meaning of the agreement, including scholars -- will want to consult the travaux
préparatoires for insight into the “common intentions and agreed
definitions”[5]
of the negotiators.

The
Vienna Convention on the Law of Treaties has a specific rule:

Recourse
may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of article 31, or
to determine the meaning when the interpretation according to article 31:

So the Vienna
Convention assigns a limited, supplementary role to travaux préparatoires.
They can be consulted to confirm the meaning, to overcome an ambiguity, or to
avoid an absurdity in the plain text. On the other hand, recognized treatises
have ascribed a larger roll to travaux préparatoires. Jennings and Watts point out that

“[T]he International Court of Justice and its
predecessor have frequently affirmed the usefulness of recourse to travaux
préparatoires. … [W]here a treaty has been negotiated with thorough
preparation and full deliberation, and an efficient and complete record … has
been kept, the value of the travaux préparatoires may be great ….[7]

Daillier and
Pellet note that “an evolution can be traced for some years now tending to
accord greater weight to travaux préparatoires.”[8]

While 105 states
are parties to the Vienna Convention, the United States is not.[9] (Neither is France.) In fact, courts in the United States take a more liberal view of the use of travaux
préparatoires than the Vienna Convention does. A recent case in the United
States Court of Appeals for the Ninth Circuit, Gonzalez v. Gutierrez,
demonstrates this.[10]
The international agreement before the court was the Hague Convention on the
Civil Aspects of International Child Abduction. The Gonzalez court said:
“Although in interpreting a treaty we begin with the text, we may look beyond
the written words to other factors for interpretive guidance. Appropriate
sources to consult include the purposes of the treaty, its drafting history,
and its post-ratification understanding.”[11]
The United States Supreme Court has expressed itself even more strongly. “Because
a treaty ratified by the United States is not only the law of this land … but
also an agreement among sovereign powers, we have traditionally considered as
aids to its interpretation the negotiating and drafting history(travauxpréparatoires) ….”[12]
There is nothing in these quotations about a merely secondary or supplementary
role for travaux préparatoires.

There is another
reason for consulting travaux préparatoires that has little to do with
interpretation as a matter of law. We can call this other reason the genetic
reason. There may be absolutely no doubt about the meaning of the treaty text;
it is clear to every reader, even to a lawyer. Yet, we may take great interest
in how the text of the agreement evolved into its final form. In other words,
the evolution of the text has intrinsic historical interest. The examples are
of course limitless. One brief illustration will have to serve.

The very first
right specified in the International Covenant on Civil and Political Rights is
in Article 1(1), first sentence: “All peoples have the right of
self-determination.” The researcher will learn from the travaux
préparatoires that the proposal to include peoples’ right of self-determination
in the Covenant sparked a sharp controversy. Was this a political principle or
a legal right? Three contending schools of thought formed. The debate covered
a span of years in the drafting of the Covenant. A working party to deal with
the question was convened. It made its report, recommending the inclusion of
the right of self-determination. In the end, we know what happened, but if it
were not for consulting the travaux préparatoires the researcher would
have no inkling of the struggle that preceded the adoption of Article 1(1),
first sentence of the Covenant.[13]

B. The Four
Models of Publication of Travaux Preparatoires

The dual
significance of travaux préparatoires having been established, the
question naturally arises (especially for law librarians), “How do you find
these things?” The answer to this question is mutifaceted. It turns out that travaux
préparatoires come in a variety of guises. The search for travaux
préparatoires can range from quite easy at one end of the scale to impossible
at the other end. The World Wide Web has made a remarkable difference, but the
Web is not a universal antidote to the difficulties of tracking down travaux
préparatoires.

I have produced a
set of models of publication of travaux préparatoires that helps to
clarify the situation for anyone who is about to embark on a search for them:

First, however, I
want to mention two kinds of resources that can immeasurably facilitate
research in this area. The first is a guide to the travaux préparatoires
that tracks the agreement article-by-article, with references to the relevant
places in the travaux préparatoires where each article (or the text that
preceded it) is discussed.

This kind of guide
is immensely useful. Travaux préparatoires are usually published in the
chronological order of their production and do not correlate well with the
order of the final text of the agreement. They can amount to a large and
complex body of documentation. If somebody takes the trouble to analyze the travaux
préparatoires by collating them with the final text of the agreement, an
invaluable research resource is created. Given the amount of effort required
to produce such guides, not many of them exist. However, the researcher should
always check first before launching into her own hunt.

There are few
enough of these guides that they deserve to be noted here:

Bossuyt, Marc
J. Guide to the “Travaux Préparatoires” of the International Covenant on
Civil and Political Rights.” Dordrecht; Boston: M. Nijhoff, 1987.

Craven, Matthew
C.R. The International Covenant on Economic, Social, and Cultural Rights:
A Perspective on its Development. Oxford: Clarendon Press, 1995.[14]

Detrick, Sharon. The United Nations Convention on the Rights of the Child: A Guide to the “Travaux
Préparatoires.” Dordrecht; Boston: M. Nijhoff, 1992.

Rehof, Lars A.
Guide to the Travaux Préparatoires of the United Nations Convention on the
Elimination of all Forms of Discrimination Against Women. Dordrecht; Boston: M. Nijhoff, 1993.

The second kind of
resource is an article-by-article commentary on a particular agreement. In the
nature of things such a commentary refers to the travaux préparatoires,
either for interpretive guidance or historical context. Two outstanding recent
examples are Schlechtriem’s commentary on the CISG[15] and Schreuer’s commentary on
the ICSID Convention.[16]

1. Model
I – Unavailable (nonexistent or inaccessible)

I start with the model of unavailability not because I
want to make the process of research seem terribly difficult or frustrating,
but rather because I want to inject a note of realism and common sense into the
endeavor. If it is understood that unavailability is one model of (non)access
to travaux préparatoires, it will save the law librarian or other
researcher the disappointment of unreasonable expectations.

Many, many bilateral
agreements are entered into without a great deal of formal negotiation. What
formal negotiation does take place is not recorded, and any record that does
exist is probably in the form of notes taken by the negotiators, and certainly
is not intended for publication. The obvious conclusion is that in the case of
many bilateral agreements, the researcher should not expect to find travaux
préparatoires.

A significant multilateral
agreement that has presented much difficulty is the North American Free Trade
Agreement (NAFTA). For a decade after it went into force all documents
relating to the drafting history of NAFTA were inaccessible. That included
both the various draft texts and the minutes of the meetings of the various
negotiating committees. It is not that they formally were declared
confidential; you just couldn’t see them. Then finally the NAFTA Free Trade
Commission in the Joint Statement
(www.dfait-maeci.gc.ca/nafta-alena/JS-SanAntonio-en.asp) on its July 2004
meeting in San Antonio had this to say:

We are committed to transparency in trade
negotiations. The negotiating texts of the NAFTA are documents of historical
value and we recognize the level of public interest in them. We asked our
officials to compile the NAFTA negotiating texts, bearing in mind the time
necessary to complete this. We began the process with Chapter 11 [Investment]
and are pleased to announce that Chapter 11 texts will be available through our
websites.

Two cases of
confidentiality deserve mention. For 35 years the travaux préparatoires of
the Treaty of Rome establishing the European Economic Community were declared
to be inaccessible.[17]
Then, in 1994 they were declared to be open. They are now available in 415
dossiers on 815 microfiches in the Historical Archives of the European Union in
Florence, Italy. There is an excellent online inventory of the collection on
the website of the Historical Archives. (Click Fonds
presentation and then locate CM3/NEGO).

The travaux
préparatoires of the European Convention on Human Rights were published in
eight volumes between 1975 and 1985.[18]
However, the travaux préparatoires relating to all of the other
international agreements sponsored by the Council of Europe, and there are
about 195 of these, remain confidential. In 1965 the Consultative Assembly
recommended to the Committee of Ministers that it should authorize the
publication of the travaux préparatoires of Council of Europe
conventions.[19]
The Council of Ministers refused, but agreed to put in place an alternative.[20] This is the publication of an
official explanatory report that accompanies each convention sponsored by the
Council of Europe. Not all conventions or protocols have an explanatory
report, but most do.

These are easy to
find. At the main Council of Europe conventions website, the
researcher needs only to click on Full list, and then on the name of the
convention of interest. A page “What do you want to know about this treaty?”
appears. The researcher clicks on the link to the Explanatory Report, which
comes up in full in printer-friendly HTML format. In hardcopy the texts of the
Council of Europe conventions together with their Explanatory Reports are
available from the Council of Europe Bookshop Online.

2. Model
II – Collected under one title

The Hague
Conference on Private International Law is the best example of Model II. The
first Hague conference was convened in 1893. In 1951the Hague Conference
became a permanent intergovernmental organization, founded on its Statute,
which is an international agreement. The Conference has 64 member states, but
122 nations from all parts of the world are parties to one or more Hague
conventions.

The purpose of the
Hague Conference is “to work for the progressive unification of the rules of
private international law.”[21]
The principal method for achieving this goal is the drafting and negotiation of
multilateral international agreements. To date the Hague Conference has
sponsored 35 conventions on a variety of subjects in private international law.

The working method
of the Hague Conference can be summarized as follows. The Permanent Bureau
(secretariat) undertakes preparatory work. Then preliminary drafts of a
convention are drawn up by special commissions made up of governmental
experts. The draft convention is then considered, debated, perhaps amended,
and adopted at a plenary session of the Hague Conference, which convenes every
four years.

What kind of
documentation is produced during the preparation of a Hague convention? We can
identify at least the following kinds:

}In one category, the documents of the
preliminary work, which include such items as:

oA report drawn up by the Permanent Bureau
on the advisability of proceeding to draft a convention on the subject in
question;

oA checklist drawn up by the Permanent
Bureau of provisions that might be included in the convention;

oThe preliminary conclusions of the special
commission appointed to draft the convention;

oThe preliminary draft convention adopted by
the special commission;

oAn explanatory commentary on the draft
convention drawn up by one of the expert members (the rapporteur) of the
special commission.

}In another category, the so-called “Acts”
of the session of the Hague Conference that considered the convention,
including:

oWorking documents of the commission
appointed by the plenary to consider the draft convention, including proposals
to amend the draft text;

oThe minutes of the meetings of this
commission;

oWorking documents of the plenary session;

oThe minutes of the plenary session.

}In a third category, the final text of the
convention as adopted and the official explanatory report drawn up by a
recognized expert delegate, usually the person who had previously been
appointed as rapporteur during the drafting phase.

All of this
documentation is gathered up and published in a series known popularly as “Actes
et Documents.” If these volumes are cataloged under one title and classed
together, as in my view they most certainly should be, the full title will be Actes
et Documents de la … Session. The corporate author will of course be the
Hague Conference on Private International Law.

Now, the Hague
Conference maintains an excellent website. This is a fairly recent
development. The question is, what effect has the website had on the
availability of Hague Conference travaux préparatoires? The answer is
that there has been a highly favorable, but not yet revolutionary, impact. The
reason is that the full text of the Actes et Documents series is not
available on the website. If we take as an example the most recent convention
sponsored by the Hague Conference, the Convention on Choice of Court Agreements
(2005) we find on the website an extensive collection of the preliminary documents
but not the final explanatory report, or the procès verbaux of the meetings of
the sessions of the Conference. For other conventions, only the official
explanatory report is available. For some conventions, there are Hague
Conference documents about the practical operation of conventions after
they have gone into force. My conclusion is that researchers should make full
use of the website when researching the travaux préparatoires to Hague
Conference conventions, but that all libraries with a substantial collection of
international legal materials should definitely have the hardcopy set of Actes
et Documents.

The other example
of Model II is the International Institute for the Unification of
Private Law (UNIDROIT). UNIDROIT also is an intergovernmental
organization whose purpose is to study the needs and to propose methods for
modernizing, harmonizing and coordinating private law, in particular commercial
law. UNIDROIT’s main working method is to draft legal instruments, including
international agreements, that harmonize the law in particular fields.
UNIDROIT emphasizes that its focus is on rules of substantive law, not rules of
private international law, which is what distinguishes UNIDROIT from the Hague
Conference.

Much of UNIDROIT’s
official work is published in an annual series under one title. The series is
known by both its French and English title, Actes et Documents or Proceedings
and Papers. This series publishes official documents of UNIDROIT,
including the final texts of adopted uniform laws or international agreements,
as well as preliminary study documents and draft instruments that qualify for
the description of travaux préparatoires. The UNIDROIT series is not as
complete as the Actes et Documents of the Hague Conference, because it
does not contain the verbatim record of meetings.

The World Wide Web
has had a beneficial effect on researching the documentation of UNIDROIT. The
documents that compose the annual volumes of Proceedings and Papers are
available in PDF on the UNIDROIT website from 1997 to the present. The
documentation for 1996 is incomplete.

3. Model
III – Treaty-specific conference records

This is both the
most common model and the most difficult to research. When a significant
multilateral agreement is to be negotiated, a sponsoring body – it could be a
state, say Switzerland; or it could be an international organization, say the
United Nations – convenes an international conference to which as many states
as possible will be invited to send representatives. The conference elects a
president and organizes itself into working committees, usually including a
drafting committee. The conference works through and prepares the text of the
agreement, which is then adopted in the plenary session of the conference in a
document called the “final act.”[22]
In the course of its work, the conference produces such documents as procès
verbaux (verbatim records of discussion in committee and plenary sessions),
summary records of discussion, and working drafts of the agreement. These
documents are gathered together and published as the record, that is, the travaux
préparatoires, of the conference.

From the
perspective of research, the difficulty of working with Model III is that there
is no necessary link between the name of an international agreement and the travaux
préparatoires of the conference that produced it. The cataloging record of
the conference publication does not have to, and frequently does not, contain a
tracing or added entry for the name of the agreement. Therefore, a search
using the name of the agreement, which is usually what the researcher has in
hand, often will not turn up the cataloging record for the travaux
préparatoires.[23]

An example
illustrates both the difficulty and the method. The famous international
agreements negotiated in 1949 for the protection of war victims, are called
almost universally in the legal literature by their popular name, the Geneva
Conventions.[24]
This is the information that the researcher has to start with.

A search on OCLC
WorldCat for keywords “Geneva Conventions” returns over a thousand records. A
title-keyword search returns a little over 300, which is more manageable.
However, the record for the travaux préparatoires is not among them.
What does appear in many of the records is the name of the conference,
as officially established in the cataloging: Diplomatic Conference for the
Establishment of International Conventions for the Protection of Victims of War
(1949: Geneva, Switzerland). A search on the terms in the name of the
conference quickly reveals the record for the travaux préparatoires under their
formal title, Final Record of the Diplomatic Conference of Geneva of 1949.
This method of searching for Model III documents may not be ideal, but it does
work. The caveat that I would enter here is that for best results the researcher
should be a law librarian.[25]

There is a
complicating factor that deserves mention. It can happen that the record of
the negotiating conference does not represent the entirety of the travaux
préparatoires. A good example is the Vienna Convention on the Law of
Treaties. The travaux préparatoires of the conference have indeed been
published.[26]
However, in the decade preceding the decision to convene a conference
(1955-1966), the International Law Commission carried out an immense amount of
preparatory work on the law of treaties, which led directly to the General
Assembly’s decision to convene the conference. Fortunately, this work is
thoroughly documented on the website of the International Law Commission. (Click Analytical guide). This
pattern obtains for several agreements for which the International Law
Commission did preparatory work. The Commission’s website has complete information.

Working with Model
IV requires knowledge of the international organization in question and its
documentation. Each international organization is unique and has to be taken
on its own terms. Of course, we are concerned here with international
organizations that carry out law-making functions through the adoption of
international agreements. There are several of these. We take the
International Labour Organization (ILO) as an example, partly because the ILO,
through its outstanding website, has revolutionized research into its travaux
préparatoires.

Founded in 1919,
the ILO became the first specialized agency of the UN in 1946. The structure
of the ILO has three main components. The International Labour Conference is
composed of the member states of the ILO. The Conference meets in Geneva in June of each year. The Governing Body is the executive council of the ILO. One
of its significant functions for our purposes is to propose the agenda of
subjects to be considered by the Conference. The International Labour Office
is the permanent secretariat of the ILO in Geneva.

One of the major
functions of the ILO is standards-setting on a broad array of questions in the
general field of labor and labor rights. One of the chief mechanisms of the
ILO’s standards-setting activity is the adoption of international agreements,
called conventions. As of 2005, the ILO has adopted 185 conventions dealing
with all aspects of labor standards. One of the most significant recent
conventions, which we take as an example, is the Worst Forms of Child Labour
Convention of 1999.[27]

Once the
International Labour Conference accepts a standards-setting issue for its
agenda, it asks the International Labour Office to prepare reports for
submission to the next session of the Conference. The Conference then assigns
consideration of the agenda item to a committee of the Conference. The
committee makes its own report, which is considered by the plenary of the
Conference. If the proposal for enacting a standard in the form of a
convention is approved, the plenary session of the Conference adopts the text
of the proposed convention. It should be noted here that the consideration of
proposed conventions usually takes place during two consecutive sessions of the
Conference.[28]

In hardcopy, the
work of the International Labour Conference is published in the annual serial, Record
of Proceedings. On the other hand, the reports that the International
Labour Office submits to the Conference are published as discrete bibliographic
entities. Each has a title and even an ISBN. A header on the title page
referring to the session of the Conference, along with a reference to the
agenda item, indicate that the document is a report made to the Conference.

I want to propose
that today the ideal method for researching the travaux préparatoires of
ILO conventions is online. The ILO has an outstanding website
with all kinds of information. One of the central components of the website is
the database of ILO-sponsored labor standards, called ILOLEX. Of course, a major element of ILOLEX is the collection
of ILO conventions. The full text of
every ILO convention is easily accessible, along with links to ratification
information. However, there is no link from the text of a particular
convention to the relevant travaux préparatoires, even though they are
available elsewhere on the ILO website.

To get to the travaux
préparatoires you have to go to the link on the ILO homepage to the
International Labour Conference. With the knowledge that the Worst Forms of
Child Labour Convention was adopted in 1999, the researcher selects the link
for the 87th Session, which took place in June 1999. There the
researcher finds links to a full range of sessional documents. For our
purposes, the significant documents are:

}“Reports Submitted to the Conference” (by
the International Labour Office). These are organized by agenda item with an
indication of the subject, so it is easy to find the reports titled “Child
Labour.”

}“Reports of Conference Committees and
discussion in Plenary.” These too are organized with an indication of the
subject.

Knowing that proposed conventions are discussed at two
consecutive sessions of the Conference, the researcher then goes to the link
for the 86th Session (1998) and repeats the process.[29] Here I have to enter a
caveat. This kind of research using the ILO website is possible only as far
back as the 86th Session. However, from 1998 going forward, the
website has revolutionized research on the travaux préparatoires of ILO
conventions. Already the website is posting documents for the 95th
Session of the Conference in 2006.

C. Conclusion

Having
worked through all four models, the observant reader will have noted a small
difficulty. When the United Nations General Assembly convenes an international
conference for the purpose of negotiating an international agreement, the travaux
préparatoires are normally published as stand-alone bibliographic entities,
which puts them in Model III. However, at the same time these documents are
issued in the A/CONF./[number] series of United Nations documents, which puts
them in Model IV. This dissolves the distinction between Models III and IV.
In response to this small difficulty, I do not claim that these models
represent airtight categories. I do maintain that my four models of travaux
préparatoires represent a useful working framework in which to approach the
task of researching them.

*This article derives from a
presentation delivered at the AALL 2005 Annual Meeting in San Antonio for the
program, Navigating the Maze of U.S. Treaty Research. Some references to
specifically U.S. situations have been retained.

[6]Vienna Convention on the Law of
Treaties, May 23, 1969, art. 32, 1155 U.N.T.S. 331 (emphasis added). Article
31(1) of the Convention, which contains the general rule of interpretation,
reads: “A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.”

[8]Patrick Daillier, Allain Pellet,
Droit International Public 262 (7th ed 2002) (citing several cases
in the International Court of Justice).

[9]This fact has not prevented U.S. courts from citing the Vienna Convention in a variety of contexts. A Westlaw search
in the ALLFEDS database returns 73 cases that have cited the Convention. Chubb
& Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), has a good
discussion of the court’s view of the Vienna Convention’s place. The court
said in conclusion that “[w]e therefore treat the Vienna Convention as an
authoritative guide to the customary international law of treaties.” See also,
Maria Frankowska, “The Vienna Convention on the Law of Treaties before the
United States Courts,” 28 Va. J. Int’l L. 281 (1988); Evan Criddle, The Vienna
Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 Va. J.
Int’l L. 431 (2004).

[17]See the extract of the
procès verbal of the meeting of the Committee of Permanent Representatives, April 3, 1959 (on file with the author).

[18]Collected Edition of
the “Travaux Préparatoires.” The Hague: M. Nijhoff, 1975-1985. The formal
name of the convention is Convention for the Protection of Human Rights and
Fundamental Freedoms. The convention is frequently cited to 213 U.N.T.S. 221.
However, as the convention has been amended several times, the best place for a
reliable current text of the convention is the Council of Europe’s conventions
website. (http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm)

[22]This is obviously a
much-abbreviated summary. For a fuller account see Robert Jennings &
Arthur Watts, Oppenheim’s International Law 1183-1187 (9th ed. 1992)
and Conferences and Congresses, International in the Encyclopedia of Public
International Law (1992).

[23]To be fair to
catalogers, I should say that when the travaux préparatoires include the text
of the agreement, an astute cataloger will take note of that fact by making an
added subject entry for the name of the agreement. That will establish the
link the researcher hopes for.

[24]A Westlaw search on the
phrase “Geneva Conventions” in the JLR database returns over 3000 documents.
Searches on other variations of the name return far fewer.

[25]This caveat is brought
home by the observation that a Google search on “Geneva Conventions” has over
750,000 hits, rendering it useless.

[26]United Nations
Conference on the Law of Treaties: Official Records. New York: United Nations,
1969-1971.

[27]38 I.L.M. 1207
(1999). The full name is Convention (C182) Concerning the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour.
However, the preamble to the convention says that it may be cited as the Worst
Forms of Child Labour Convention. Here we have another example of the name
difficulty discussed above.

[28]For a fuller
discussion of the structure and working methods of the ILO, see Ebere Okieke,
Constitutional Law and Practice in the International Labour Organisation
(1985).